Saturday, August 16, 2008

The Wall Street Journal has an interesting interview with Cuban dissident Armando Valladares, an opponent of Castro's communist dictatorship who was imprisoned by the regime for some 22 years. Valladares' memoir Against All Hope is one of the better books produced by dissidents from communist states.

I discussed the Cuban government's massive human rights violations (the scale of which is still rarely appreciated) in this series of posts, where I also explained why its mostly mythical successes in providing health care do not come close to offsetting the harm caused by its political and economic repression.

Friday, August 15, 2008

A very interesting debate in the comments section of the Northern Virginia Housing Bubble Fallout Blog over whether Arlington prices, which have held up reasonably well post-bubble, are likely to fall due to the "substitution effect". With housing prices having plummeted in the outer suburbs, will home buyers, for example, decide to buy a 200K home in Prince William County instead of a 700K home in close-in Arlington?

My best guess, despite being an Arlington homeowner, is that Arlington is due for a fall. Arlington has many advantages, and the disproportionate rise in Arlington prices has some legitimate reasons, including how much nicer and safer DC has become, reasonably wise development policies in Arlington, and the general trend toward Yuppies wanting a more urban experience. But Arlington also has uneven schools, older housing stock, small lots, very high prices, and nasty traffic problems for those who need to commute west (like my brother-in-law, who spent an hour each way driving from Courthouse to Fairfax City each day, a fifteen to twenty-minute drive with no traffic), where the high-tech companies are located. At some point, marginal buyers will prefer neighborhoods in the outer burbs where prices are at 2002 levels (down 50% or so from the peak) to neighborhoods in Arlington where prices are still at 2004 levels (down 10-15% from the peak).

UPDATE: A major reason prices have fallen so hard in the outer 'burbs, but not Arlington, is the much great incidence of foreclosures in the former. Foreclosures, and for that matter short sales, have dragged down the prices of "normal" sales, creating what may turn out to be short-lived bargains. If I were buying for investment now, it strikes me that an 80K townhouse in Manassas or Dumfries that could be rented for $1,200 a month is a much better deal than an $800K house in Arlington that rents for $3,200.

Judge Nullifies Juror Nullification:
A very interesting post today by Tim Lynch on Cato @ Liberty on a recent jury trial in a drug case:

It was supposed to be just another federal drug prosecution. The federal prosecutors introduced evidence that the man on trial was involved in the black market drug trade. The defense attorney said the government agents entrapped his client. And then the twelve citizen-jurors retired to deliberate the outcome of the case.

But then something unusual happened. The jury sent a note to the trial judge with the following query: Since the Constitution needed to be amended in 1919 to authorize federal criminal prosecutions for manufacturing and smuggling alcohol, a juror wanted to know from the judge where “is the constitutional grant of authority to ban mere possession of cocaine today?”

That’s a fair question. It is a point that has been made in Cato’s publications (go here (pdf) and here (pdf)) and a point that has been made by Justice Clarence Thomas, among many others. Federal District Court Judge William Young was startled. He says he has been on the bench for 30 years and has never faced a situation where a juror was challenging the legitimacy of a criminal law. Young tried to assure the jury that the federal drug laws are constitutional because the Supreme Court has interpreted the commerce clause quite expansively. When the jury sent out more notes about a juror that wasn’t going to sign off on an unconstitutional prosecution, Young halted the proceedings to identify the ”problem juror.” Once discovered, that juror was replaced with an alternate–over the objections of defense counsel. Shortly thereafter, the new jury returned with guilty verdicts on several cocaine-related charges.

It is an extraordinary thing for a judge to meddle with the jury in the middle of its deliberations. So, to justify his removal of the “problem juror,” a man named Thomas Eddlem, Judge Young issued a 40-page memorandum of law (pdf). I happen to know and respect Judge Young. I invited him to speak here at Cato about the awful federal sentencing guidelines, but his legal memorandum in this case is remarkably thin. I will briefly respond to his substantive arguments below.

There is little question that, at the Founding, jurors were triers of both the law and the facts. In essence, this provided a popular check on an overreaching legislature and a supine judiciary, although a check that would only operate on a case-by-case basis. A jury could find that a statute was unjust generally, or only as applied in the particular case. This would affect the general enforceability of a statute only if many juries agreed. Although juries retain the power to refuse to apply an unjust law, beginning in the Nineteenth Century, judges started prohibiting lawyers from advocating this to a jury upon pain of contempt. The Fully Informed Jury Association (FIJA) is a non-profit organization aiming to inform all Americans about their rights, powers and responsibilities when serving as trial juror. Click on the link to learn more about jury nullification.

The plants will cover 12.5 square miles of central California with solar panels, and in the middle of a sunny day will generate about 800 megawatts of power, roughly equal to the size of a large coal-burning power plant or a small nuclear plant.

The power will be sold to Pacific Gas & Electric, which is under a state mandate to get 20 percent of its electricity from renewable sources by 2010. The utility said that it expected the new plants, which will use photovoltaic technology to turn sunlight directly into electricity, to be competitive with other renewable energy sources, including wind turbines and solar thermal plants, which use the sun’s heat to boil water. . . .

Though the California installations will generate 800 megawatts at times when the sun is shining brightly, they will operate for fewer hours of the year than a coal or nuclear plant would and so will produce a third or less as much total electricity.

the plants are a big step for solar power, but they also highlight solar power's limitations: the need for over 35 square miles of solar panels to generate the same amount of power as a single coal plant, but without the same level of reliability.

Thursday, August 14, 2008

Roger Pielke Jr. cites some interesting polling data purporting to show the percentage of Americans considering themselves to be "environmentalists" has declined dramatically over the past 20 years. Today just over 40 percent of respondents answer "yes" to the question “Do you consider yourself an environmentalist or not?”

Does this mean that Americans are less supportive of environmental protection than in the past? I doubt it. One possibility is that an increasing percentage of Americans reject the idea that the environmentalist movement has a monopoly on what it means to be "pro-environment." Americans who support environmental protection may feel uncomfortable with either the tactics or policy prescriptions embraced by establishment environmental groups. If so, it should not be much of a surprise.

A decade or so ago --back in my own activist/think tank days -- I commissioned polling work on what Americans believed it meant to be "pro-environment," finding that many Americans saw "conservative" approaches to environmental protection -- e.g. decentralization, protection of property rights, non-regulatory measures, etc. -- as "pro-environment." (See summaries here and here.)

I believed then -- and believe now -- that this and other polling data suggest that establishment environmentalist groups lack an enforceable monopoly on what it means to be "pro-environment." Insofar as conventional "greens" dominate the field, it is by default. Conservative and libertarian types generally -- and conservative politicians in particular -- have largely ceded the field. They either endorse conventional policies on the cheap, or oppose establishment environmentalist proposals outright without proposing a positive alternative. My own somewhat-academic effort to outline such an agenda can be seen here, but I've hardly answered every problem (or even come close). If only John McCain or some other market-oriented politician would take seriously the need to develop a pro-environment alternative, they might even have a ready-made constituency waiting in the wings.

A side note, but when is the last time you heard a judge refer to someone as a "Jewess"?

Well, if you do a Westlaw search for the term, the immediately preceding case is In re B.C., 680 N.E.2d 1355 (Ill. 1997), with the following notation in the list of amici (granted, seemingly put there by West Publishing and not by the court):

I actually found this one to be so bad, I was somewhat amused. From an email address in the Netherlands:

ONLINE NOTIFICATION OF WINNING [of winning?]

The British National Lottery, [no salutation, but in form of one; why is a notification of winning a British lottery coming from a Netherlands address?]

Wishes to Congratulate [cap?] you on your success as one of our Ten(10) Star Prize Winner [no "s"] of the Online International Awareness Promotion (IAP) [where's the "O"?] held 14th August, 2008 in London. This makes you the proud owner of a prize of £1,856,652 Pounds [pound symbol and pounds spelled out, and incorrectly capitalized]. To begin processing of your prize. [why does the sentence stop here?]

Contact claims officer via below informations [informationS?]:

Name: Bar Janet Wasborn ["Bar?"]

Phone: +447011137932

E-mail:jwasborn12@live.com [odd email address for a claims officer of the British Lottery]

Contact him [a "him" named "Janet"?] with your Serial No: S/N-472-9768-79 [why does this look suspiciously like a Social Security number?]

Also provide listed informations: [Again, "informationS"]

Names: [another extra "s"]

Address:

Sex:

Marital Status:

Age:

Occupation:

Phone no:

Country:

Yours sincerely,

Roland Holland [They couldn't think of a name that didn't rhyme? Or be the same as the country they are emailing from?]

Senior Claims Officer.

Het UMC St Radboud staat geregistreerd bij de Kamer van Koophandel in het handelsregister onder nummer 41055629.
The Radboud University Nijmegen Medical Centre is listed in the Commercial Register of the Chamber of Commerce under file number 41055629.
[What the heck does the above have to do with the British National Lottery?]

Sir William Jones, the great scholar of "eastern" languages routinely (though incorrectly) credited with discovering the Indo-European language family and founding modern historical linguistics, was by profession a lawyer. He learned Sanskrit as a judge in India. In his book Dangerous Knowledge: Orientalism and its Discontents, Robert Irwin reports (pp. 123-4) that:

At an early stage in his life, Jones's father had considered attaching him to a chambers to get a legal education, but Jones had resisted this on the understandable grounds that the quality of the Latin used in English law books was so very bad.

A slip I caught myself making, though fortunately I caught it in time. A quick Westlaw search suggests others have made the slip, too.

(At some point, of course, each word may acquire the other word's meaning as an alternate meaning, and the Oxford English Dictionary does suggest there's been some element of that for centuries. But the OED still marks this as an error, which leads me to believe that the slippage is rare enough that, descriptively, it isn't yet standard -- and is in any event likely to needlessly annoy many readers.)

An interesting legal question (and, as usual in such cases, hints of a deeply unpleasant factual back story), from In re Estate of Feinberg: "Can an Illinois court enforce a testamentary provision that any of the testator’s grandchildren who marry outside the Jewish faith, unless the spouse has converted or converts within one year of the marriage to the Jewish faith, will, for purposes of the testamentary instrument, be deemed to be deceased, along with all of his or her descendants?"

The court says no, by a 2-1 vote. Two judges take the view that such a testamentary provision is against Illinois public policy, and courts should not enforce it. One of the two judges in the majority also argues that it's unconstitutional for the courts to enforce it, citing Shelley v. Kraemer, the 1948 case that held that courts may not enforce racially restrictive covenants. The dissenter disagrees on both counts, and suggests that the provision is a legally acceptable way for the decedents to "seek to preserve their 4,000-year-old heritage." The judges acknowledge that the precedents from other states are mixed, though those precedents all tend to be quite old.

The judges do not expressly discuss a different possible constitutional objection: That the Establishment Clause bars civil courts from deciding who is within "the Jewish faith," just as civil courts may not decide which church is truly Presbyterian and which has "depart[ed] from [the orthodox] doctrine." In at least some situations, there would be serious disputes over who belongs to "the Jewish faith," especially since that term usually means "is Jewish under Jewish law," a matter that can be famously contested among the different streams of Judaism; I doubt that civil courts are allowed, under current First Amendment law, to resolve such disputes. Should that preclude any judicial enforcement of such conditions in wills, or only when there is in fact a serious dispute about whether the spouse is Jewish?

(In case you don't get it, an explanation of the post title can be found here and here; it's a pretty famous joke among Jews, I think, though the attitude it refers to is more sad than funny. Setting aside the propriety of the grandparents' underlying plan, I would have hoped the trust could have been drafted in a way that's less symbolically unloving than labeling some grandchildren as dead, even if such labeling is convenient as a matter of pure drafting.)

One of my longstanding frustrations with regulation of credit cards (and consumer credit generally) is that regulation is enacted without always clearly specifying the market failure to be addressed. Most credit regulation today is disclosure-based rather than substantive. Substantive regulation is something like a usury regulation that caps the interest rate that can be charged. Substantive regulation has been understood to be generally counterproductive in consumer lending markets, so disclosure-based regulation like Truth in Lending has become the way in which regulation is done.

The logic behind disclosure-based regulation is that by creating standardized disclosure of terms thought "important" then it eases consumer shopping. That is true, of course, as far as it goes. But it doesn't work well in situations where consumers have heterogeneous preferences and shop on many margins. So, for instance, credit card solicitations include the "Schumer Box," which requires certain "important" terms to be disclosed prominently in a tabular format. Those terms include things that are obviously important, such as the APR and annual fee, but also things that may have been important 20 years ago such as the "Minimum Finance Charge" which is almost always 50 cents now. Some cards now disclose in the Schumer Box things like the foreign transaction fee--which, of course, is only relevant to a small percentage of credit card holders. So regulation requires prominent disclosure of terms that people do care about, but also require prominent disclosure of terms that people don't care about. Moreover, once certain disclosures are set by law or regulation they are frozen in amber and become very difficult to change.

The problem with this is that by requiring certain terms to be prominently disclosed, it becomes more difficult for consumers to locate the terms that they do care about. One quickly gets into the information overload scenario for the typical consumer. This also leads to the "fine print" problem, as it leaves less space for disclosure and elaboration of other terms.

Moreover, the whole model seems to misunderstand the whole logic of the market for information. If a term is important to consumers (such as the interest rate or annual fee) it is not clear why credit card issuers would not disclose it or why consumers would not demand that information. Do people buy products when they don't know the price? But for information that is trivial for most consumers, such as the minimum finance charge or the foreign transaction fee, most consumers are unlikely to shop on that margin and it is unlikely to relevant for most consumers, so there's no reason to believe that this would part of a standardized disclosure format. Instead, it would be expected to be on a need-to-know basis, in the sense that idiosyncratic consumers would get that information when and if they needed it.

To the extent that regulation is appropriate, therefore, the first question should be to ask whether there is a market failure in the market for information and what kind of regulation will address it. It may be that there are market failures in the information market that require intervention. But current regulation doesn't even really seem to be thinking about the question this way. This is exacerbated by the problem of what I call "back-door substantive regulation" or "normative regulation" where regulators use disclosure regulation not to help consumers shop for and get what they actually want, but rather to try to influence their choices and try to get them to focus on what the regulator wants them to focus on to try to shape their behavior. So, for instance, a regulator might say "I'm worried about consumer overborrowing. And I know it is counterproductive to engage in usury regulation. But if I hit consumers over the head with information about how much credit costs them, then maybe I can get them to borrow less." So certain terms end up getting disclosed more prominently than consumers actually care about them because the regulator is actually trying to advance some other goal. If this is the regulator's goal, then fiddling with disclosure-based regulation seems like a poor way to do this. One example is the requirement that consumers be told how long it will take to payoff their balance if they only make the minimum payments. It appears that this actually affects about 4% of cardholders. In the end normative disclosure ends up being a poor way of helping consumers to shop better while also being a poor way of doing substantive regulation. I've talked about these questions more in my lecture on "The Economics of Consumer Lending" which is available on my website here.

Now the problem gets complicated with heterogeneous consumers. Nowadays about half of consumers use their credit cards for convenience or transactional purposes and never revolve balances. I am in this category. I have no idea what my interest rate is on my credit cards. Nor do I know my minimum finance charge, my interest rate on cash advances, etc. And I don't shop for credit cards on those margins. I shop on the basis of my annual fee and benefits, such as cash back or frequent flyer miles (I canceled my frequent flyer card because the annual fee was too large for my taste relative to the benefits). Yet if I shop for a credit card, the credit card solicitation is filled up with all of this junk that I don't care about. So it becomes much more difficult for me to find the information I do care about. And again, it seems like credit card issuers have an incentive to provide me with the information I need to shop and choose their card.

So I've always thought that it would be great for there to be a website where you could go and essentially get personalized or tailored disclosures to the margins that you care about, rather than the standardized disclosures that are compelled by the regulatory apparatus. Sort of like a Consumer Reports for credit cards.

So, at last, we get to the point of this exegesis. There is a new website called CardHub that directly addresses this issue by enabling you to compare a whole bunch of credit cards according to the terms that you care about. It includes most every price term you could care about, including balance transfer fees, default APR, etc. It also includes not just benefits, but particular benefits (cash back, frequent flyer, etc.).

Maybe there are some glitches with CardHub that aren't obvious to me. But playing around on the web site this seems like a very pro-consumer market innovation that uses technology to directly address the information economics issues that underlies consumer credit markets and to enable consumers to make better choices. And perhaps there are other websites that do the same thing. But I think this is a great innovation to address the desire of consumers to get useful information to compare card offers, one that seems quite superior to traditional horse-and-buggy consumer credit regulation. Of course, this won't address the concerns of those who don't like the choices consumers make, but in terms of simply enabling consumers to better locate the cards they want, this seems like a great idea.

The University of Maryland, Baltimore County will change its facilities-use policies after a student pro-life group claimed its First Amendment rights were violated when its display featuring graphic images of aborted fetuses was moved away from a prominent public area on campus.

While lawyers for UMBC said in U.S. District Court in Baltimore Friday that the school’s decision to move Rock for Life-UMBC’s display was “content neutral,” it agreed to revise rules as to when university officials are allowed to move a student group display without notice, such as inclement weather or safety concerns.

The two sides will give Judge J. Frederick Motz a joint status report Sept. 19 on the implementation of the new policy, at which point the student group can decide if it wants to continue its lawsuit by challenging the university’s speech code....

Members of Rock for Life, a registered student organization at UMBC, were given permission by university officials in mid-April 2007 to put up a display outside one of the university’s main buildings on April 30, 2007, according to Rock for Life’s complaint filed in April 2008.

The display was from the Genocide Awareness Project, a traveling exhibit for college campuses featuring graphic images of abortion sponsored by The Center for Bio-Ethical Reform, a California-based pro-life group. The display consists of either 6-foot-by-13-foot posters or 4-foot-by-6-foot-posters.

But, according to the complaint, the group was told to move its display two times — once on April 25 and again on April 30 before the display was set up — to progressively “more deserted” areas on campus.

Aden said the university moved Rock for Life because of its message, noting larger events and other student groups have used the space Rock for Life originally requested....

But Sally L. Swann, an assistant attorney general representing UMBC, said the display was moved because the proposed 24 large posters would obstruct building exits and posed a fire hazard....

Lawyers for both sides met during several lengthy recesses to hammer out the details of the newly worded facilities-use policy, with the university removing the phrases “emotional safety” and “emotional harassment” from the list of reasons officials could move a display without notice....

Whether the policy was applied in a content-neutral way in this case, it seems pretty clear that "emotional safety" and "emotional harassment" language in such policies is easily usable in content- and viewpoint-based ways. Certainly the one UMBC policy that I could find that uses these terms — Article V.B of the Code of Student Conduct — seems unacceptably vague and, in its most plausible interpretation, unconstitutionally content-based (especially given that the university seems to concede that it is are applicable to displays and not just to, say, individualized threats conveyed to a particular person):

Any student found to have violated the following rules and regulations is subject to the sanctions outlined in Section C ...: ...

2. Behavior Which Jeopardizes the Emotional or Physical Safety of Self or Others.
This rule prohibits, but is not limited to, the following: ...
f) physical or emotional harassment; ...

The Second Amendment and People Convicted of Domestic Violence Misdemeanors:

From U.S. v. Booker (D. Me. Aug. 11) (Woodcock, J.):

Heller left unanswered a significant question: The level of scrutiny the Court must apply to the restriction on Mr. Booker's individual right to bear arms. As Heller notes, the "traditionally expressed levels" are "strict scrutiny, intermediate scrutiny, and rational basis." The Heller majority acknowledged that it did not establish "a level of scrutiny for evaluating Second Amendment restrictions," but it left some hints. First, the Heller majority rejected Justice Breyer's "interest-balancing" approach, observing that it knew "no other enumerated constitutional right whose core protection has been subjected to a freestanding 'interest-balancing' approach." Second, the majority conceded that the District of Columbia law would pass rational-basis scrutiny and, since it ruled the District's complete ban on handguns unconstitutional, the necessary implication is that the rational-basis test is not applicable. The remaining options are strict and intermediate scrutiny.

Strict scrutiny is generally reserved for statutory restrictions that affect the exercise of certain "fundamental right[s]." The individual right to bear arms might well be a fundamental right, the restriction of which requires strict scrutiny. This conclusion is supported by the placement of Second Amendment within the Bill of Rights alongside this Country's most precious freedoms. However, as Justice Breyer points out, Heller expressly approves some statutory restrictions -- the types of people who may exercise this freedom; the places where this freedom may be exercised; and, the ability to buy and sell the objects of this freedom -- "whose constitutionality under a strict scrutiny standard would be far from clear." "Intermediate scrutiny is used, for discrimination based on gender and for discrimination against nonmarital children." Heller itself concedes that it does not "clarify the entire field." It consciously left the appropriate level of scrutiny for another day.

Rather than tackle this complex and unanswered question, the Court starts from a different place. Heller teaches that even though the Second Amendment guarantees an individual right to bear arms, it is "not unlimited." Heller states that "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms." A useful approach is to ask whether a statutory prohibition against the possession of firearms by felons and the mentally ill is similar enough to the statutory prohibition against the possession of firearms by persons convicted of the misdemeanor crime of domestic violence to justify its inclusion in the list of "longstanding prohibitions" that survive Second Amendment scrutiny.

The Court concludes it does. To reach this conclusion, the Court starts by comparing the constitutionally-sanctioned prohibition against firearm possession by felons with the prohibition against persons convicted of misdemeanor crimes of domestic violence. A person can, of course, be convicted of a felony which had nothing to do with physical violence and which would not necessarily predict future misuse of a firearm. Nevertheless, the law forbids any convicted felon, regardless of the nature of the felony, from possessing firearms and Heller constitutionally sanctioned this broad prohibition. [Footnote: The same point is generally applicable to the mentally ill....]

By contrast, the predicate offense under which Mr. Booker was convicted is defined in 18 U.S.C. § 922(g)(9) as requiring "the use or attempted use of physical force" by someone who is a spouse, parent, or guardian of the victim or someone in a position similar to a spouse, parent, or guardian of the victim. [Footnote: Mr. Booker emphasizes that an individual may be convicted of a misdemeanor crime of domestic violence in Maine by reckless behavior; he argues that there is not a significant enough government interest to deprive him of his Second Amendment right if he acted only recklessly. However, the felony convictions to which Mr. Booker's predicate offence is being compared run the gamut of the mens rea spectrum, and a domestic violence offender's mens rea does not impact the Court's analysis under Heller.] If anything, as a predictor of firearm misuse, the definitional net cast by § 922(g)(9) is tighter than the net cast by § 922(g)(1). Turning to the governmental interest, the manifest need to protect the victims of domestic violence and to keep guns from the hands of the people who perpetrate such acts is well-documented and requires no further elaboration.

Based on the absence of a meaningful distinction between felons and persons convicted of crimes of domestic violence as predictors of firearm violence, the critical nature of the governmental interest, and the definitional tailoring of the statute, the Court concludes that persons who have been convicted of a misdemeanor crime of domestic violence must be added to the list of "felons and the mentally ill" against whom the "longstanding prohibitions on the possession of firearms" survive Second Amendment scrutiny.

Not an unanswerable argument, of course, but at least a plausible and relatively detailed attempt to confront the underlying question, unlike some of the other early post-Heller district court decisions (see, for instance, here).

Last February, a three judge panel on the U.S. Court of Appeals for the Sixth Circuit granted death row inmate Michael Bies's habeas petition, holding that the Double Jeopardy clause bars the state from re-litigiating the issue of Bies' mental retardation. The Ohio Supreme Court has affirmed Bies' death sentence in 1996, despite his mental retardation. The Court agreed with lower courts that this mitigating factor was not outweighed by other aggravating factors. Since then, however, the U.S. Supreme Court has held, in Atkins v. Virginia, that state may not execute the mentally retarded. Bies filed a habeas petition on these grounds, seeking to get a life sentence, prompting prosecutors to re-open the question of Bies' mental retardation. No dice, the Sixth Circuit panel held last fall, as reopening this issue would violate the Double Jeopardy clause. As the opinion by Judge Clay concluded:

Under the Double Jeopardy Clause, “when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” Ashe, 397 U.S. at 443. This rule establishes an absolute bar to a state seeking to relitigate such an issue of ultimate fact, regardless of the correctness of the original decision. . . . We therefore do not concern ourselveswith the merits of Petitioner’s Atkins claim; the only question before this Court is whether the government, having litigated and lost the issue of Petitioner’s mental retardation, is now attempting to reopen this question. . . .
Having examined the record in this case, we determine that Petitioner was found to be mentally retarded, under the clinically accepted definition of mental retardation, by a final judgment of the Supreme Court of Ohio. We further determine that the government is now seeking to relitigate this identical issue, that the Supreme Court of Ohio’s finding was necessary to its judgment, and that the government had a full and fair opportunity to litigate this issue on direct appeal. . . . Accordingly, this case is controlled by the United States Supreme Court’s decision in Ashe, and this Court is obligated to follow that decision. As § 2254 does not require us to defer to the state court’s judgment in this case, we therefore AFFIRM the decision of the district court granting habeas relief to Petitioner, vacating his sentence of death, and ordering that he be resentenced to receive a sentence other than death.

As the time, Robert Loblaw found the decision to be "remarkable" and "creative." Yet as Orin noted at the time, Loblaw also predicted "reversal is inevitable." Not so fast. Last week, the U.S. Court of Appeals for the Sixth Circuit denied the state's petition for rehearing en banc. Judge Clay wrote an opinion concurring in the denial of en banc review. Judge Sutton dissented. His dissent concludes:

What is most trying about all of this is that it does not seem necessary. When the federal courts first acted in this case, they interrupted a state trial court proceeding designed to determine whether Bies had a successful Atkins claim. The whole point of the double-jeopardy argument was to stop the state court proceeding in its tracks and to prevent the same courts from opining about the validity of his Atkins claim. In obliging Bies, however, we have failed to give the state courts a chance to bring their judgment to bear on the point, and after this decision federal district courts within the circuit presumably will do the same thing with other similarly situated Atkins cases. SeeState v. Hill, No. 2006-T-0039, 2008 WL 2719570, at *6 (Ohio Ct. App. July 11, 2008) (disagreeing with Bies and holding “that the issue of Hill’s mental retardation was not ‘actually and directly litigated’ at his sentencing hearing”). AEDPA’s exhaustion requirement exists to prevent just this kind of premature intervention while a State addresses the petitioner’s challenge. . . . And unlike cases where we have permitted unexhausted double-jeopardy challenges before the defendant’s second prosecution commenced, . . . Bies faces no risk of a second prosecution.

By contrast, were we to allow the state court proceeding to go forward, Bies is hardly in a disadvantaged position. He has an IQ of 69, and two licensed clinical psychologists have concluded that he is mildly mentally retarded. Assuming that these opinions stem from balanced evaluations of Bies’ mental capacity, there is ample reason to think that the Ohio courts will take his claim seriously. Atkins, like Bies, was mildly mentally retarded . . ., and Bies’ IQ places him within the category of individuals the Court recognized might be affected by its decision . . . . Nor have the Ohio courts been reluctant to grant relief under Atkins. The Ohio Supreme Court already has granted relief in one such case, State v. White, 885 N.E.2d 905, 917 (Ohio 2008), and the state trial courts have done the same in six others . . . . And even if the worst should happen from Bies’ perspective, even if the Ohio courts should conclude that Bies was not mentally retarded under Atkins, he could seek certiorari on the question or seek habeas relief in the district court. Far from undermining Atkins, this path (through state court determinations) is exactly what the Supreme Court envisioned: For Atkins left “to the States the task of developing appropriate ways to enforce the constitutional restriction,” and principles of comity and federalism mandate that we give the Ohio courts the first opportunity to apply that restriction to Bies’ case.

Vanishing Bill of Rights Coffee Mug:I have one, and I think it's kind of cool, at least in an ironic lawgeek way. Plus, the Second Amendment and the Takings Clause don't vanish, so it should leave most VC readers pretty happy.

UPDATE: Reader David Warren points out that then-Judge Cassell later expressly held the opposite as to an illegal alien who had not feloniously reentered the U.S. See U.S. v. Atienzo, 2005 WL 3334758 (D. Utah 2005):

In light of Esparza-Mendoza [the earlier case I linked to above], the question is now presented as to whether that decision should be extended to block illegal aliens who are not previously-deported felons from claiming Fourth Amendment protections. As just explained, this issue was specifically reserved in Esparza-Mendoza. The reasoning of Esparza-Mendoza does not automatically require the conclusion that illegal aliens who are not felons are categorically barred as a class from asserting Fourth Amendment rights. The opinion rests in no small part on the unique status of felons-who are generally excluded from the political process. With respect to illegal aliens who are not felons, the decision whether they fall outside the Fourth Amendment would seem to require a case-by-case determination. Because in this case the government does not challenge Atienzo's argument that he has sufficient connections, the court concludes that he can assert a Fourth Amendment claim.

While deported alien felons are excluded from the national community in a permanent way, the situation may be different for at least some persons who have committed no felonious criminal act other than to remain in this country illegally....

Having rejected the categorical position that all illegal aliens as a class lack sufficient connection to this country to assert Fourth Amendment rights, the court has no legal arguments before it disputing Atienzo's specific position that he has sufficient connections. In light of the posture of the case, the simplest course is for the court to then accept the uncontested specific view that Atienzo can claim Fourth Amendment protection.

The Second Amendment opinion I link to, of course, concludes that illegal aliens generally, not just illegal alien felons, lack Second Amendment rights.

The Second Amendment / illegal alien decision discussed in the post below reminds me of a broader question — do noncitizens who are legally present in the U.S. have Second Amendment rights?

1. Federal law generally bars gun possession by noncitizens who are here under a nonimmigrant visa. Some state laws go further and ban all possession by noncitizens, including by permanent residents. The law of Guam likewise bans all possession by noncitizens, and because federal statutes extend the Bill of Rights to Guam, the Guam law could be challenged even without reaching the question whether the Second Amendment is incorporated against the states.

Generally speaking most constitutional rights have been extended (at least where criminal punishment, as opposed to the threat of deportation, is involved) to legal aliens. Should this apply to the Second Amendment? The reasoning in the illegal alien opinion seems to potentially apply to legal aliens as well, though that's not clear.

2. Also, what about the Court's doctrine that state and local laws (as opposed to federal law) discriminating based on citizenship are subject to strict scrutiny? There's an exception for discrimination that denies aliens access to "political functions" that are "intimately related to the process of democratic self-government" (such as voting or jury service, or hiring of police officers, probation officers, or public school teachers), but given the Court's self-defense-rights reasoning in Heller, that likely doesn't apply here. A few state courts have considered this argument, and have split on it. See generally Pratheepan Gulasekaram, Aliens With Guns: Equal Protection, Federal Power, and the Second Amendment, 92 Iowa L. Rev. 891 (2007).

3. Note also that some state constitutions secure a right to keep and bear arms to all persons, while others speak of "people" and still others speak specifically of "citizens." There might thus be a right to bear arms under at least some such state constitutions, as I argued in this op-ed that criticized an Omaha ban on handgun possession by noncitizens (including perfectly legal residents) — the Nebraska Constitution provides that "All persons have certain inherent and inalienable rights," including "the right to keep and bear arms for security or defense of self, family, home, and others, and for lawful common defense, hunting, recreational use, and all other lawful purposes." Cf. People v. Zerillo, 189 N.W. 927 (Mich. 1922) (striking down on state right-to-bear-arms grounds a ban on aliens possessing guns); People v. Nakamura, 62 P.2d 246 (Colo. 1936) (likewise). But see State v. Vlacil 645 P.2d 677 (Utah 1982) (rejecting such a claim without much explanation, under a state constitutional provision that speaks of "the people" rather than citizens); and there are also several decisions from other states that reject noncitizens' claims on the plausible theory that the particular state constitutional provision speaks expressly of a right of the "citizen."

That common law right [to keep and bear arms, secured by the Second Amendment,] was held only by citizens and those who swore allegiance to the Government; it did not include everyone present on American soil.... For instance, Samuel Adams and other delegates urged the Massachusetts ratifying convention to recommend barring Congress from “prevent[ing] the people of the United States, who are peaceable citizens, from keeping their own arms.” The New Hampshire convention proposed that “Congress shall never disarm any Citizen unless such as are or have been in Actual Rebellion.” In these proposals, the pre-existing right clearly inured only to “peaceable” or lawful “Citizens.” See also David Yassky, The Second Amendment: Structure, History, and Constitutional Change, 99 Mich. L. Rev. 588, 626–27 (2000) (“The average citizen whom the Founders wish to see armed was a man of republican virtue -– a man shaped by his myriad ties to his community, the most important for this purpose being the militia.”).

Founding-era statutes confirm this limitation on the pre-existing common law right. During the American Revolution, several states passed laws providing for the confiscation of weapons owned by persons refusing to swear an oath of allegiance to the state or the United States. To deal with the potential threat coming from armed citizens who remained loyal to Great Britain, states took the obvious precaution of disarming these persons. Thus, even within the confines of the pre-existing right to keep and bear arms, certain persons -– such as those who did not swear loyalty to this country -– were seen as falling outside the protection of that right, and laws or regulations that disarmed them were well-established at the time the Second Amendment was adopted. Indeed, several Founding-era state constitutions expressly provided that the right to bear arms extended only to “citizens.” See, e.g., Pa. Cons. Stat. (1790); Ky. Const. (1792); Miss. Const. (1817); Conn. Const. (1818); Me. Const. (1819).

Along these same lines, Heller concluded that the reference to “the people” in the Second Amendment “unambiguously refers to all members of the political community, not an
unspecified subset.” Heller grouped this reference to “the people” with others found in the Bill of Rights, specifically the First, Fourth, and Ninth Amendments, as
defined by an earlier Supreme Court decision, United States v. Verdugo-Urquidez, 494 U.S. 259 (1990). In that decision, which related to the scope of the Fourth Amendment’s application to the DEA’s search of a foreign national that took place
on foreign soil, Justice Rehnquist’s majority opinion adopted the following definition of “the people”:

“[T]he people” seems to have been a term of art employed in select parts of the Constitution .... [Its uses] sugges[t] that “the people” protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.

Verdugo-Urquidez is but one example of a series of cases that recognize that foreign nationals or “aliens” are not entitled to all the rights and privileges of American citizens. Justice Jackson’s “ascending scale of rights” analysis is fully applicable today:

The alien, to whom the United States has been traditionally hospitable, has been accorded a generous and ascending scale of rights as he increases his identity with our society. Mere lawful presence in the country creates an implied assurance of safe conduct and gives him certain rights; they become more extensive and secure when he makes preliminary declaration of intention to become a citizen, and they expand to those of full citizenship upon naturalization.

Johnson v. Eisentrager, 339 U.S. 763, 770-71 (1950) (emphasis added). As a result, lawful resident aliens who are present within the constitution’s jurisdiction and have “developed
substantial connections with this country” are entitled to minimal constitutional protections. The recognition of certain rights to resident aliens, however, does not mean that “all aliens are entitled to enjoy all the advantages of citizenship or, indeed, to the conclusion that all aliens must be placed in a single homogenous legal classification. For a host of constitutional and statutory provisions rest on the premise that a legitimate distinction between citizens and aliens may justify attributes and benefits for one class not accorded to the other; ....”

Neither foreign nationals who have not yet reached our shores, nor illegal aliens who have done so unlawfully and without the Attorney General’s permission, are entitled to the full panoply of rights available to citizens or even resident aliens. To the contrary, that status by definition places such individuals outside the traditional protections of the Constitution ....

Clearly, under any historical interpretation of the enactment of the Second Amendment or the interpretation of any similar right under the Constitution, the individual right to bear arms defined by Heller does not apply to an illegal and unlawful alien. This Defendant, alleged by this Indictment to have been an unlawful alien, is not a citizen, is not ostensibly a person with identifiable and significant ties to the community, and is not someone who has any duty of allegiance to the United States. A person of his status could have been barred from possessing a firearm under English or Colonial American common law, and similarly could be precluded from doing so under the Second Amendment. His mere presence here does not entitle him to constitutional protection because he is clearly outside the scope of the “political community” who are conferred rights under the Second Amendment....

I'm inclined to be skeptical of arguments based on Revolutionary-War-era statutes — what a nation did in time of a war in which its existence is in very serious doubt doesn't tell us that much about what the general constitutional rules ought to be. But the view that "the people" wasn't understood as including illegal aliens seems to me quite plausible.

More on the implications of this decision (and of the underlying question) in posts to come. Thanks to Robert Luck for the pointer.

Wednesday, August 13, 2008

Perceptions of the Terrorist Threat and the Anthrax Attacks:A few weeks ago, the Justice Department was preparing to indict Bruce Ivins, a biodefense scientist, for the 2001 Anthrax attacks. The government's apparent theory was that Ivins launched the attacks to make his field of research of more important (and perhaps to make money from some patents he held in the area). Ivins committed suicide before being indicted, and DOJ has now released a redacted version of the documents it had on Ivins that it believes show he was responsible for the attacks.

Assuming that DOJ was right that Ivins and Ivins alone was behind the attacks, the anthrax attacks provide a fascinating example of how perceptions of the terrorist threat are formed. Back in October 2001, shortly after 9/11, the Anthrax attacks were front-page news. Five people died, and many high-level government employees were treated to a round of Cipro treatments in case they had been infected. In a nutshell, a lot of important people were seriously freaked out.

Perhaps the most important personal reaction to the 2001 Antrax attacks was that of Vice President Cheney. According to Jane Mayer's new book, the anthrax attacks had a major effect on Cheney. He thought Al Qaeda was behind them, and at one point he even thought that he personally had received a lethal dose of anthrax. Soon after the attacks, Cheney started spending time at an "undisclosed location" in case Washington DC was obliterated: the threat of massive casualties from such an attack helped propel Cheney's sense that strong and uncompromising countermeasures in the war on terror were necessary. According tosome reports, Cheney was so worried about a biological weapon attack after the 2001 anthrax episode that he pushed for mandatory inoculation against smallpox even though it would have led to many American deaths from side-effects.

I think it's interesting to compare the impact of the October 2001 Anthrax attacks to the impact of the December 2001 shoe-bomber, Richard Reid. Reid actually was an Al Qaeda member: He actually did try to blow up a plane using a bomb on board. And yet my sense is that the Reid episode had a much lesser impact on public perceptions of the Al Qaeda threat than did the Anthrax attacks. Why is that? I think part of it is that the anthrax attacks were unsolved: Back in 2001-02, when perceptions were formed, the source of the anthrax attacks remained mysterious and therefore threatening. The attacks could be anywhere, at anytime. In contrast, Reid was identified and stopped, and he put a human face on the attack. In the public mind, Reid became just a strange Muslim dude who tried to light his shoe on fire.

Part of it is also that the anthrax attacks appeared successful. My sense is that the public mind is over-influenced by attacks that seem successful and under-influenced by the ones that don't; near misses don't register very much in the public mind, while lucky hits register as if they were predestined. The contrast between the public reaction to the 1993 World Trade Center attacks and the 2001 World Trade Center attacks reinforce this. Both were efforts by Al Qaeda cells to bring down the World Trade Center buildings: The first failed and the second succeeded. My sense is that a lot of people saw the 1993 attacks that failed to bring down the Towers as the work of a few nuts with a truck. In contrast, the 2001 attacks that succeeded registered in the public mind as the work of brilliant terrorist masterminds.

Anyway, I don't have any grand theoretical claim here. I just think it's interesting to reflect on what events trigger what threat perceptions, and how hard it is for us as members of the public to assess the threat based on what we can see.

The other day I linked an article in the Chronicle of Higher Education on the changing social scene at colleges where women dramatically outnumber men. It turns out that many readers were unable to access the article but were interested in reading it. I've found it on the author's blog www.whyboysfail.com. You can get it here. This is the first I've heard of this blog but it looks like there's some very interesting stuff there.

(1) The New York Times has a piece discussing the problems with adversarial expert testimony in the U.S., and promoting the Australian system of "hottubbing" as an alternative. I'm skeptical that this less adversarial approach will catch in the U.S.; despite it's long-term failure so far, I still think that finding a way to use nonadversarial experts (agreed to by the parties or if necessary appointed by the courts) is the way to go. Indeed, the Times doesn't mention it, but Australia (or maybe it's just some Australian jurisdictions) also is adopting a system requiring the parties in civil litigation to agree on a slate of experts.

(3) ABC News has an extremely irresponsible report on families that fled Love Canal three decades ago. Apparently, and in contrast to previous studies, a new report forthcoming from the N.Y. Department of Health finds some elevated health risks among the evacuees and their children. But since the report hasn't been released, and the Department of Health declines comment, there is no way to evaluate it. Meanwhile, ABC repeats every unsubstantiated, and in some cases rebutted by earlier studies, claim about health problems among Love Canal evacuees.

[U]nder Heller, Fincher’s possession of the guns is not protected by the Second Amendment. Machine guns are not in common use by law-abiding citizens for lawful purposes and therefore fall within the category of dangerous and unusual weapons that the government can prohibit for individual use. [The court apparently took the same view as to Fincher's sawed-off shotgun. -EV] Furthermore, Fincher has not directly attacked the federal registration requirements on firearms, and we doubt that any such attack would succeed in light of Heller.

There's more, dealing with Fincher's pre-Heller arguments that his membership in a non-state-run militia group gave his actions constitutional protection.

See generally United States v. Dorosan, No. 08-042 (E.D. La. 2008)(U.S. Magistrate Judge’s June 30, 2008 memorandum holding that Heller and Emerson hold that the Second Amendment protects a fundamental
right)(Found on internet at www.volokh.com, scroll to July 16, 2008 blog entries and the entry entitled “Ninth Circuit’s Sensible Response to a DC v. Heller Claim.” At the end of the entry, click the seventh entry entitled “Another Early Post-Heller Second Amendment Case” and it will carry the HTML link to the Dorosan opinion).

I don't know what browser or what settings the lawyer was using, but generally just clicking on the link to the opinion will show the address ("http://volokh.com/files/dorosan.pdf") in the navigation bar — and, if it doesn't, right-clicking on the link will usually give you a way of getting the opinion. Plus, I'm told you can always do things the old-fashioned way, and attach a copy of the unpublished opinion to the brief.

But on the other hand, I like the idea of our site being a special library in which precious documents can be found, even if only through elaborate instructions passed along by the cognoscenti. Just go to the third floor, turn right at the first black set of stacks, go ten feet down, and open the seventh book on the bottom shelf — you can't miss it.

The Second Amendment, part of the Bill of Rights added to the original Constitution in 1791, states: "A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." In other words: since a militia, provided that it is well regulated, is a very good thing for a free state to have, the federal government must not be allowed to castrate it by forbidding the people of the United States to possess weapons. For then the militia would have no weapons, and an unarmed militia is an oxymoron.

Politically conscious Americans in the late eighteenth century feared standing armies, having fought the British army in the Revolution, and feared centralized government (as in Britain); and on both counts they wanted to make sure that the states would be allowed to have armed militias. The federal government could regulate them but not disarm them. The fear was that in the absence of such a provision in the Bill of Rights, the provision in Article I of the Constitution authorizing Congress to organize, arm, discipline, and call into service "the Militia" (a term that embraces the state militias, because the same provision reserves the right to train and officer "the Militia" to the respective states) would enable Congress to disarm them. That fear surfaced in the debates over the ratification of the original Constitution and was, as Justice John Paul Stevens's dissenting opinion explains, the motivation for the Second Amendment.

The text of the amendment, whether viewed alone or in light of the concerns that actuated its adoption, creates no right to the private possession of guns for hunting or other sport, or for the defense of person or property. It is doubtful that the amendment could even be thought to require that members of state militias be allowed to keep weapons in their homes, since that would reduce the militias' effectiveness. Suppose part of a state's militia was engaged in combat and needed additional weaponry. Would the militia's commander have to collect the weapons from the homes of militiamen who had not been mobilized, as opposed to obtaining them from a storage facility? Since the purpose of the Second Amendment, judging from its language and background, was to assure the effectiveness of state militias, an interpretation that undermined their effectiveness by preventing states from making efficient arrangements for the storage and distribution of military weapons would not make sense.

Note first that Posner’s version of originalism focuses on the supposed “motivation” for the Second Amendment. Posner is using “original intent” originalism, not “original meaning” originalism. While looking at probable intent can be revealing, it can also deteriorate into what Randy Barnett has called “channeling the framers.”

Second, Posner cites no early authority for his view of original intent (or original meaning) other than the text itself and Justice Stevens’s opinion.

As for Posner’s textual analysis, we know from Eugene Volokh’s pathbreaking analysis of preambles in early state constitutions that preambles were not viewed as significantly limiting the underlying rights they granted. Even if Posner were correct that protecting state militias was the only goal of the Amendment – and there is evidence against this proposition and no evidence in favor of it – the framers may still have chosen to guarantee a right broader than was necessary to fulfill that motivation. That’s one reason it’s important to look primarily at the language they chose, not mostly at their motivations for acting.

But the bigger problem has already been suggested: how does Posner know that the framers did not have broader goals for the Amendment? There is no evidence that they intended the Second Amendment to be limited to militia and some evidence that they didn’t. Indeed, several contemporary authorities that addressed whether the proposed or recently adopted amendment protected an individual right described it as doing so.

Posner states categorically what the originalist interpretation of the text is or should be, but if he is correct, why did no framer or early commentator ever offer that view? Why did several early commentators treat the Second Amendment (or its drafts) as guaranteeing an individual right, including in some cases a right for the purposes of self-defense and hunting?

As for Posner’s hypothetical about seizing weapons in wartime, I don’t see how it significantly advances his argument. Rights are not absolute. First, if there is a right, then the state should be loathe to seize weapons except in the direst of emergencies. Second, if the state did take weapons, the state would have to pay for this taking, as it would if it took any other property covered by property rights protected by the state. (Also, I recall that some states (and/or colonies) treated firearms as privileged, protecting them from distress for debts.)

On evidence from the first major commentator on the Second Amendment, St. George Tucker, here is the leading young historian on the legal and political history of guns in the late colonial early republic periods, Robert Churchill:

It is clear from the Tucker's gloss on the Second Amendment in the manuscript draft [from the early 1790s] that he saw in the amendment a guarantee that extended well beyond the concern over federalism that Cornell discusses. Tucker noted that "in England the people have been disarmed under the specious precept of preserving the game." In a note on the facing page, Tucker commented that in England, "the right of the people to bear arms" was by the inclusion of limiting language "entirely done away." In this gloss, Tucker suggested that the passage of England's game laws had in England eliminated the constitutional protection that the Second Amendment was intended to guarantee. Tucker reiterated this view in 1803, noting that under the game laws in England, "the right of keeping arms is effectually taken away," while expressing his hope that in America, "the people will never cease to regard the right of keeping and bearing arms as the surest pledge of their liberty."

The problem for Saul Cornell's argument is that England's game laws prohibited citizens, the vast majority not enrolled in the militia, from possessing firearms for private purposes. That Tucker saw the game laws as a contravention of the right protected by the Second Amendment is clear evidence that he understood that right to apply in America to all citizens and to weapons owned for both public and private purposes. Tucker's view mirrors that of Samuel Nasson and Saumel Latham Mitchel, cited by Cornell, and of a supporter of Samuel Adams in August 1789 who interpreted the House draft of the Second Amendment as a vindication of Adams's earlier proposed amendment that prohibited Congress from preventing "the people of the United States, who are peaceable citizens, from keeping their own arms." All of these early interpreters of the language embedded in the Second Amendment understood it to guarantee a right to keep arms that transcended "the inextricable connection" to militia service that Cornell posits.

If the view of the 2d Amendment advanced by Judge Posner, Justice Stevens, and Prof. Cornell were the original view of the framers, why didn't any of the framers or early commentators ever say so? And why was this new "civic rights" advanced by Stevens and Cornell rarely mentioned by anyone until about a decade ago?

After discussing originalism, Posner then writes about changed circumstances, an argument on which he is on much firmer ground.

BTW, Dick Posner and I are co-teaching a course in judicial behavior this coming school year (along with Bill Landes and Lee Epstein). Thus, I hope to explore his views on originalism in more detail in the next few months.

Posner on Heller: Is it All Politics?The New Republic has posted an interesting essay by Richard Posner criticizing Justice Scalia's opinion in DC v. Heller. According to Posner, Heller "is questionable in both method and result, and it is evidence that the Supreme Court, in deciding constitutional cases, exercises a freewheeling discretion strongly flavored with ideology." A taste:

The true springs of the Heller decision must be sought elsewhere than in the majority's declared commitment to originalism. The idea behind the decision--it is not articulated, of course, and perhaps not even consciously held--may simply be that turnabout is fair play. Liberal judges have used loose construction to expand constitutional prohibitions beyond any reasonable construal of original meaning; and now it is the conservatives' turn.

I cannot discern any principles in the pattern of the Supreme Court's constitutional interpretations. The absence of principles supports the hypothesis that ideology drives decision in cases in which liberal and conservative values collide. If loose construction produces a conservative limitation on government, most conservatives will support it and most liberals will oppose it; and if it produces a liberal limitation on government, most liberals and conservatives will switch sides.

Posner is ridiculously wrong, of course: The fundamental truth of constitutional law is that Justices who agree with me are divining the true Constitution, while the rest are political hacks twisting the document to suit their policy preferences. Thus, my side is always principled.

Thanks to Ed Whelan for the link. Ed also has his own comments on Posner's review over at Bench Memos.

Tuesday, August 12, 2008

William McGurn reports on a surprising landowner victory in an eminent domain case from the Garden State.

In the latest of man-bites-dog rulings from the state courts, a three-judge panel of the New Jersey Appellate Division actually sided with ordinary homeowners over a greedy local government and developer.

In their ruling, the judges unanimously reversed a lower-court decision giving the city of Long Branch a green light to pursue its redevelopment plan. That has put a serious crimp into the city's hopes for taking the homes of about a dozen longtime residents -- and turning them over to a developer to put up luxury condos in their place.

The Washington Post opposes oil drilling in the Arctic National Wildlife Refuge (ANWR) and other ecologically sensitive areas. But the Post also opposes misinformation about offshore oil drilling spread by environmentalist groups and others. In particular, the Post takes aim at three myths about offshore driling:

Drilling is pointless because the United States has only 3 percent of the world's oil reserves. This is a misleading because it refers only to known oil reserves. According to the Interior Department's Minerals Management Service (MMS), while there are an estimated 18 billion barrels of oil in the off-limits portions of the OCS, those estimates were made using old data from now-outdated seismic equipment. . . . there could be much more oil under the sea than previously known. The demand for energy is going up, not down. And for a long time, even as alternative sources of energy are developed, more oil will be needed.

The oil companies aren't using the leases they already have. . . . The notion that oil companies are just sitting on oil leases is a myth. With oil prices still above $100 a barrel, that charge never made sense.

Drilling is environmentally dangerous. . . . According to the MMS, between 1993 and 2007, there were 651 spills of all sizes at OCS facilities (in federal waters three miles or more offshore) that released 47,800 barrels of oil. With 7.5 billion barrels of oil produced in that time, that equates to 1 barrel of oil spilled per 156,900 barrels produced. That's not to minimize the danger. But no form of energy is perfect or without trade-offs. Besides, if it is acceptable to drill in the Caspian Sea and in developing countries such as Nigeria where environmental concerns are equally important, it's hard to explain why the United States should rule out drilling off its own coasts.

Drilling — offshore or anywhere else — is no panacea, and the drilling debate should not distract policymakers from considering ways to encourage the economical development of alternative energy sources (such as with prizes). Yet, as the Post notes, "with the roaring economies of China and India gobbling up oil in the two countries' latter-day industrial revolutions, the United States can no longer afford to turn its back on finding all the sources of fuel necessary to maintain its economy and its standard of living." In other words, we'll still need new sources of oil in the near-to-medium term.

Under the energy law signed late last year, 9 billion gallons of ethanol and biodiesel must be blended into gasoline between Sept. 1, 2008, and Aug. 31, 2009, to meet a national Renewable Fuels Standard. Texas Gov. Rick Perry (R) sought to reduce that to 4.5 billion gallons, on the grounds that the mandate is hurting livestock producers and increasing food costs.

In denying the request, the EPA explained that it did not believe the mandate was having too great an impact on food and fuel prices, and that whatever costs the mandate imposed were outweighed by the mandate's benefit. The ethanol mandate "is strengthening our nation's energy security and supporting Americans' farming communities," Administrator Stephen Johnson explained. Funny thing, I thought the EPA's job was environmental protection, not subsidizing farmers or promoting something as nebulous as "energy security." The mandate cannot be justified on environmental grounds, however, as the ethanol mandate does more harm than good.

the diversion of our corn supply from grocery stores to gasoline pumps has caused the price of corn to spiral out of control. Corn prices were once driven by market forces. Today they are artificially driven up
by a government mandate. In 2004, before the mandates were imposed, the cost of corn hovered around $2 per bushel. Now it is close to $8 per bushel.

This is driving up the cost of staple food items at the grocery store. And it is also driving up the price of corn-based feed, devastating the livestock industry to the point that Texas cattle feeders have been operating in the red since 2007. . . . .

Denying Texas's request is a mistake that will continue to force families to bear a heavier financial burden to put food on the table than necessary and harm the livestock industry.

Supporters of the ethanol mandate have their hearts in the right place if they want to diversify this nation's fuel supply. But artificially propping up an industry to the detriment of the vast majority of Americans is bad policy.
And that's what this mandate does.

This is hardly the EPA's first bad, anti-environmental effort to prop up the ethanol industry. During the Clinton Administration, the agency sought to impose a de facto ethanol mandate in the guise of a "renewable oxygenate" standard under the Clean Air Act. The problem was, the Clean Air Act did not provide the agency to impose such a requirement -- and a good thing too, as the mandate would have done more environmental harm than good.

The Clinton Administration's effort could be ascribed to the ethano-philia common among D.C. politicians who hope to curry support in the farm belt and bolster their reelection efforts. But the Bush EPA has no such an excuse. No crass political motive appears to explain the Agency's decision. Rather, it seems, the Bush EPA actually believes in this bad policy.

Russian agreements to conclude all military operations, return Russian armed forces to the line preceding the beginning of operations and not use force again in Georgia.

In return, Georgia would return its armed forces to their normal and permanent locations.

Both sides would provide free access for humanitarian assistance; and international consideration of the issues of South Ossetia and Abkhazia would be undertaken.

If this agreement holds (a big if), it's a better outcome than I would have expected. Georgia's democratic government will remain in place, despite Russia's previous determination to overthrow it. The Russians will not have destroyed Georgia's oil pipeline to Europe (the most important pipeline in the region that doesn't pass through Russian or Iranian territory). And Russia will renounce future use of force against Georgia and reduce its forces in the secessionist regions of Abkhazia and South Ossetia to their prewar levels. I am skeptical that the Russians will fully respect the last two commitments. Nonetheless, the outcome could have been far worse.

Why did Russia accept an arrangement that falls so far short of their maximum objectives? There is no way to know for sure. I suspect that part of the reason is the strong resistance put up by the Georgian armed forces, which although much smaller than Russia's are of fairly high quality thanks in part to US training. The quality of the Russian military remains iffy at best, and Vladimir Putin may have reasoned that complete subjugation of Georgia would be a long and costly process. After all, this is the same Russian army that took years to subdue Chechnya (a task still not quite complete), a much weaker and more isolated adversary than Georgia.

Putin may also have been influenced by the apparent unity of the West in opposing the Russian invasion. France and Germany - key European states that opposed the US over the Iraq War - were largely on the same page with us here. This newfound unity might help cub Russian aggression in the future.

None of the above justifies Saakashvili's foolish gamble in providing a pretext for Russian intervention by trying to retake South Ossetia last week. Nor does it somehow make up for the tragic loss of life and destruction of property that has occurred. Nonetheless, if this ceasefire holds and its terms are even roughly obeyed by both sides, we will end up with a better result than might have been expected a few days ago.

This semester, I'd like to automate my students' signups for various tasks (office hours, lunches with me, and the like). It would be great if they could go to some site, see the available spots, add their names for the spot that works for them, and move their appointments if necessary.

I imagine there must be some such services around, either free or costing a modest amount. I'd prefer ones that require a minimum of registration hassle, both for me and for the students -- for instance, ones that just give me one password that I can hand out to all the students, but that will let the students sign up for the available time slots under their own individual names. (Not the best security, I realize, but I don't need top security here.) If you folks can give me some tips on this, I'd be much obliged. Thanks!

Judging by the number of comments, my post on slavery as the Southern states' motive for secession in 1861 has drawn a lot more interest than I expected. Unfortunately, I have less time than usual to study and respond to comments because I am about to move to the University of Pennsylvania for the fall semester. However, those interested in this issue may want to check out the official statements of reasons for secession issued by four of the eleven seceding states in 1861 - Georgia, Mississippi, South Carolina, and Texas. All four discuss slavery far more prominently than any other issue, and three of four don't mention any issues unrelated to slavery (Georgia's statement briefly mentions disputes over the tariff, but far less prominently than slavery). Mississippi's statement gives the clearest account of the centrality of slavery to the secession decision:

Our position is thoroughly identified with the institution of slavery-- the greatest material interest of the world. Its labor supplies the product which constitutes by far the largest and most important portions of commerce of the earth. These products are peculiar to the climate verging on the tropical regions, and by an imperious law of nature, none but the black race can bear exposure to the tropical sun. These products have become necessities of the world, and a blow at slavery is a blow at commerce and civilization. That blow has been long aimed at the institution, and was at the point of reaching its consummation. There was no choice left us but submission to the mandates of abolition, or a dissolution of the Union, whose principles had been subverted to work out our ruin.

Some commenters on my posts on secession (here and here) doubt my claim that the southern states seceded in 1861 for the purpose of preserving slavery. After all, they point out, Abraham Lincoln and the Republicans had promised not to abolish slavery in the states where it existed. This is a common point advanced by those want to claim that slavery was not the main cause of the Civil War. Indeed, it was first advanced by apologists for the Confederate cause in the immediate aftermath of the War in order to paint the Confederacy in a more positive light by demonstrating that it was fighting for "states' rights" rather than slavery. But the claim doesn't withstand scrutiny.

Why did Lincoln's election cause them to fear for the future of slavery? It is true that the Republicans did not plan to abolish slavery in the near future. But white southerners still saw Lincoln's election on an antislavery platform as a serious threat to the "peculiar institution." Whatever their position on slavery where it already existed, the Republicans were firm in their commitment to preventing its spread to the vast new territories acquired by the US in the Mexican War. That, in fact, was the main point of the Republican platform. Slaveowners believed that an end to the expansion of slavery threatened their economic interests. In addition, the creation of numerous new free states without the admission of any new countervailing slave states would erode slaveowners' influence in congressional and presidential elections and potentially pave the way for abolition in the future.

Finally, slaveowners feared that Lincoln's election would undermine slavery in border states such as Maryland, Missouri, Kentucky, Tennessee and even Virginia, which already had many fewer slaves than the Deep South. By using patronage to promote the growth of Republican parties in these states and relaxing enforcement of the Fugitive Slave Act, a Republican-controlled federal government could eventually force these states to abolish slavery. Without strong federal enforcement of the Fugitive Slave Act, slaves from border states adjacent to slave states could more easily escape to the North and border state slaveowners would have incentives to sell their slaves to the deep south, where slaves couldn't run away as easily; this, of course, would undermine the institution of slavery in the border states. If the Republicans could turn the border states into free states and do the same with all the new states to be established in the West, they could create a large enough majority of free states to enact a constitutional amendment banning slavery throughout the country.

It was to head off these various threats to slavery that the southern states chose to secede in 1861. For documentation of all these points, including quotes from Confederate leaders, see historian William Freehling's excellent book, The South vs. the South.

Ultimately, slavery would probably have lasted longer if the South hadn't seceded in 1861. The Confederates clearly underestimated the North's will to fight (just as northerners underestimated that of the Confederates). Nonetheless, they did have reason to see Lincoln's election as a serious longterm threat to slavery. And that fear underlay the decision to secede.

Monday, August 11, 2008

Justice Kennedy, Heller, and the Future of the Second Amendment:
Justice Kennedy recently spoke to the Ninth Circuit Judicial Conference, and his remarks included a very interesting discussion of DC v. Heller and the Second Amendment in the Q&A.

You can see the event here, via C-SPAN (RealPlayer required). Justice Kennedy discusses the Heller case and the Second Amendment starting at the 38-minute mark. Kennedy ends up discussing the case in answering a question about using recent cases as teaching tools, but the discussion leads him to offer some very intriguing thoughts on the Second Amendment.

In particular, Justice Kennedy appears to suggest around the 40-minute mark that he will take a living constitutionalist approach to the Second Amendment that may point to more gun rights under the Second Amendment than an originalist approach would provide. The comments are off-the-cuff, but check them out if you're interested in the future of the Second Amendment. Thanks to Howard for the link.

On June 4, 2008, following a jury trial, defendant Ludivic White, Jr., was convicted of the offense of possession of a firearm after having been convicted of a misdemeanor crime of domestic violence, in violation of 18 U.S.C. § 922(g)(9) ....

Defendant now maintains that the ... Indictment should be dismissed in light of the Supreme Court’s recent decision in District of Columbia v. Heller, wherein the Court determined that “the Second Amendment conferred an individual right to keep and bear arms,” albeit not an unlimited right. In identifying broadly the scope of those limitations, the Supreme Court emphasized that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” Furthermore, a footnote accompanying that passage reads as follows: “We identify these presumptively lawful regulatory measures only as
examples; our list does not purport to be exhaustive.”

Title 18, United States Code, Section 922(g) is unquestionably a longstanding prohibition
on the possession of firearms by certain classifications of people. Indeed, the Heller Court’s illustrative list of prohibitions on the constitutionality of which it was explicitly not casting doubt included § 922(g)(1) (possession of a firearm by a felon) and § 922(g)(4) (possession of a firearm by one who has been adjudicated as mentally defective or who has been committed to a mental institution). On its face, then, Heller did not disturb or implicate the constitutionality of § 922(g), and was not intended to open the door to a raft of Second Amendment challenges to § 922(g) convictions.

White’s Motion to Dismiss would place far more weight on the Heller decision than its plain text can reasonably bear. Indeed, every federal court to examine Heller in the face of objections similar to White’s has similarly concluded that it did not invalidate § 922(g). See, e.g., United States v. Gilbert, 2008 WL 2740453, *2 (9th Cir. July 15, 2008) (“Under Heller, individuals still do not have the right to possess machineguns or short-barreled rifles, as Gilbert did, and convicted felons, such as Gilbert, do not have the right to possess any firearms.”); United States v. Robinson, 2008 WL 2937742, *2 (E.D. Wis. July 23, 2008) (rejecting Heller challenge to constitutionality of § 922(g)(1), and noting that “no court has, even under an individual rights interpretation of the Second Amendment, found 18 U.S.C. § 922(g) constitutionally suspect”); United States v. Walters, 2008 WL 2740398, *1 (D.V.I. July 15, 2008) (denying motion to dismiss § 922(g) count on Heller grounds).

In the absence of any indication by the Eleventh Circuit or the Supreme Court that the principles enunciated in Heller call into question the constitutionality of § 922(g), much less any guidance concerning the proper legal standards to apply to any scrutiny of that statute under the Second Amendment, the Court will take Heller at its word, as did the courts in Gilbert, Robinson, and Walters, that it did not cast doubt on the validity of prohibitions such as those found at § 922(g)....

What's missing here, though, is any real analysis of whether § 922(g)(9), which applies not to felons or the mentally infirm but to certain convicted violent misdemeanants, is constitutionally permissible. Perhaps it is, but simply citing language from Heller or other cases that deals with other sections doesn't, it seems to me, dispose of the matter. This is especially so given the traditional distinctions (whether always wise or not) in legal consequences between felonies and misdemeanors, and the fact that Heller so expressly relied on the tradition behind the restrictions that it expressly validated — a tradition that (again, rightly or wrongly) doesn't obviously apply to violent misdemeanors.

Now it may well be that violent misdemeanants properly could be denied the right to own a gun, even after their sentence has expired; there may be theories that would justify that. But this court's simple reliance on precedents that deal with other statutes (which are in some ways similar and in some ways different) strikes me as unsound.

My post about the possible unconstitutionality of strict liability gun control laws — i.e., of laws that hold someone criminally liable even if he's made an honest mistake (or perhaps even a reasonable mistake) about some fact, such as whether he's a felon, whether the gun is fully automatic, and the like — reminds me of the broader question of strict liability and constitutional rights. And this question most clearly arises as to strict liability for sex with people who are underage.

The Court has repeatedly held that strict criminal liability for speech — even constitutionally unprotected speech — is impermissible, and strict civil liability in such cases often is, too. The rationale is that strict liability for conduct tends to deter not just the punished conduct (which by hypothesis should be deterred), but also other conduct as to which the actor harbors some fear that it might be punishable. Sometimes, that overdeterrence is fine. But when the deterred other conduct is itself constitutionally protected, such overdeterrence excessively burdens the constitutional right.

Thus, strict liability for child pornography (imposed even if a distributor or possessor doesn't know, and has no reason to know, that the actor in a pornographic movie is under 18) would deter not only distribution and possession of constitutionally unprotected child pornography but even of constitutionally protected sexually themed material that doesn't involve under-18-year-olds (since some people would be afraid that they'd go to prison for years because an actor who looks adult was actually underage). Likewise, strict liability for possession of fully automatic guns (cf. the Washington case, mentioned here) would deter not only constitutionally unprotected possession of full automatics, but also constitutionally protected possession of semiautomatics, if someone fears that the semiautomatic might have been modified to function as a full automatic (or might function that way because of some defect). And strict liability for abortions performed on minors without the parent's permission (even when the minor shows a forged parental consent form, or brings along someone whom she falsely describes as her parent) would unacceptably deter not only constitutionally unprotected abortions without parental consent, but also constitutionally protected abortions with parental consent, if the doctor fears that any abortion on a minor will possibly expose him to liability.

What then about strict liability for sex with people under age 18, which some states still maintain? Consider this comparison chart:

Constitutionally unprotected conduct

Constitutionally protected conduct

Result

Child pornography constitutionally unprotected: People who make, distribute, and possess movies that contain minors in sexual situations may be punished. New York v. Ferber.

Other speech constitutionally protected: If the actors and actresses are 18 or older, the movie is protected (unless it fits within the obscenity exception).

It's unconstitutional to hold people strictly liable for reasonable mistakes of fact about the actors' or actresses' ages — "I reasonably thought she was 18" is a good defense [UPDATE: at least as to distribution or possession, the issues discussed in Ferber and later cases]. Ferber.

Machinegun possession constitutionally unprotected. D.C. v. Heller

Non-machinegun possession constitutionally protected.

It may well be unconstitutional to hold people strictly liable for machinegun possession, even when they've made a mistake (or perhaps just when they've made a reasonable mistake) as to whether the gun is a machinegun.

Abortions performed with parental consent on minors constitutionally protected.

It's unconstitutional (according to a state court of appeals decision) to hold people strictly liable for performing an abortion on a minor without the parent's consent, even when they've made a mistake (or perhaps just when they've made a reasonable mistake) as to whether the consent was given, or whether the person was a minor.

Sex with minors constitutionally unprotected.

Sex with consenting adults protected. Lawrence v. Texas.

Shouldn't it be unconstitutional to hold people strictly liable for reasonable mistakes of fact about their partners' ages? Shouldn't "I reasonably thought she was 18" must be a good defense, as it is when one is tried for distributing or possessing child pornography, or as it is when one is tried for performing an illegal abortion, or as it likely would be (changing the facts appropriately) when one is tried for illegally possessing a weapon.

What are the possible distinctions here? One is that there's no right, under Lawrence, to have sex with minors — but for reasons I mention, that doesn't distinguish the free speech cases, which likewise bar strict liability even for constitutionally unprotected behavior, because such liability may deter protected behavior.

A second distinction — that preventing statutory rape is just very important — also fails. Preventing child pornography involving minors is also very important, but the Court has held that the government must fight that by punishing knowing, reckless, or possibly negligent use of minors; the government may not serve even this very important interest by punishing people who reasonably believed that the person was 18.

Another is a factual distinction: In practice, one might say, very few people will be deterred from having sex with 18-year-old girls because they fear that she might be 17. But why? One might argue that it's because sex is such a powerful force; but so is the desire to make money from selling obscenity or child pornography, for those who are in that business. One might also point out that because statutory rape laws are notoriously underenforced, few people will be much deterred by them; and maybe that's enough. But that might be a hard theory for a court to accept — a strict liability statutory rape law is constitutional only because everyone knows that.

Another is that figuring out the age of one's sexual partner is much easier than figuring out the age of someone in a movie one is distributing or watching. But it's actually not always that easy to figure out a sexual partner's age if the sexual partner is lying about it, for instance by showing a fake driver's license. And in any case the ease of determining the facts in some cases counsels in favor of negligence liability — liability when a person knew or reasonably should have known the sexual partner was underage — rather than strict liability that would apply even if the person acted perfectly reasonably.

There might be another theory — Lawrence repeatedly talks about the importance of sex to creating meaningful relationships. Maybe this means that casual sex between relative strangers doesn't really deserve constitutional protection; it's protected in practice, because it's so hard to draw distinctions between meaningless sex and meaningful sex, but courts shouldn't go out of their way to protect it. And, the theory would go, generally people who don't know how old their sexual partner is don't have a really close relationship to that partner. Thus, strict liability for statutory rape wouldn't really deter meaningful relationships, only casual pick-ups. I don't think courts are likely to buy this, though, because strict liability would end up punishing even meaningful relationships (some girls might consistently lie about their age, even to a serious lover), and because I think courts will be reluctant to generalize about which relationships are likely to be meaningful and which aren't.

Finally, some argue that Lawrence didn't really recognize a true constitutional right to have sex with consenting adults, but just struck down the law on rational basis grounds. I don't think that's quite right, for reasons I mentioned here, and some recent decisions likewise take the view that there's a right to sexual autonomy that's similar in general force to rights to abortion, free speech, and gun ownership. And beyond that, the court decisions barring strict liability in other situation didn't rest on applying strict scrutiny or heightened scrutiny or some such test; they rested simply on the argument that strict scrutiny even for unprotected conduct risks unduly deterring constitutionally protected conduct. And following Lawrence, noncommercial sex with an 18-year-old is indeed constitutionally protected conduct.

I should note that the no strict liability under the felon-in-possession decision that I discussed below appears to be the first post-Heller case in which the Second Amendment was actually cited in a way that helps a gun owner (though not as a decisive factor, but just reinforcement for a conclusion that the court said would have been reached even without the Second Amendment).

In recent years, the sex balance on many college campuses has become tilted toward women. Richard Whitmire looks at the implications of this for the dating scene on one college campus where the ratio has tilted to 61% women. Although--or more precisely, because--there are fewer men on campus, it seems like a pretty good time to be a guy (at least socially).

Update:

Apologies to those who couldn't access the article--I thought that the "Commentary" page of the Chronicle was generally public.

Mistake of Fact About Whether You're a Felon = Defense to Felon-in-Possession Statute (with Second Amendment in a Supporting Role):

Federal law bans felons from possessing firearms, but doesn't expressly say whether this applies only to people who know they are felons. Usually this doesn't matter, since it is the rare felon who's confused about whether he's a felon. But U.S. v. Kitsch (E.D. Pa. Aug. 1, 2008) (Dalzell, J.), involves such a case:

[Footnote: The facts are largely undisputed. Because we must decide whether Kitsch's version of the story would, if credited by the jury, justify acquittal, we resolve any factual disputes in his favor for purposes of this motion.] In 1988 and 1989, Kitsch was cooperating with law enforcement officials in Atlantic County, New Jersey in an investigation against a man named Dino Starn who was, among other things, growing marijuana in a barn on his property. As a means of helping the narcotics officer with whom he was working obtain evidence against Starn, Kitsch set a small, smoky fire on the windowsill of the barn and then promptly called the fire department. When the fire department arrived, it found the marijuana growing in the barn and Starn was later charged.

As a result of the fire, Kitsch was charged with third-degree arson, a felony under both New Jersey and federal law. He pled guilty to the state offense after meeting with law enforcement officials who told him they would set aside the conviction and Kitsch could live as though the event had never happened. Although he served a thirty-day custodial sentence on Sundays, Kitsch avers that he truly and reasonably believed that his conviction had either been set aside or expunged. [More factual details omitted. -EV]

The district court concludes that under federal law Kitsch would be guilty only if he knowingly possessed a gun knowing that he was a felon, and that Kitsch is entitled to a jury instruction that "in order to convict Kitsch, the Government must prove beyond a reasonable doubt that he knew or was willfully blind to the fact that he had a prior felony conviction that had not been set aside or expunged."

The district court's reasoning chiefly rested on the general presumption against strict liability, to its reading of this statute, and to its reading of past precedents interpreting similar statutes; based on this, the court was willing to reject an out-of-circuit court of appeals precedent, United States v. Langley, 62 F.3d 602 (4th Cir. 1995), that held the contrary. But the court also suggested that the Second Amendment, as interpreted in D.C. v. Heller, supported its conclusion:

A statute that imposes criminal penalties for the exercise of an enumerated constitutional right despite defendant's reasonable belief in good faith that he has complied with the law must, at the very least, raise constitutional doubts. Post-Heller, the Government's desired construction of Section 922(g)(1) imposes just such a burden on defendants who, for whatever reason, reasonably believe that they are not felons within the statutory definition. Faced with a statute that raises this sort of doubt, it is "incumbent upon us to read the statute to eliminate those doubts so long as such a reading is not plainly contrary to the intent of Congress."

The trial is yet to come; we'll see whether the court's ruling helped Mr. Kitsch. For a similar opinion concluding that a constitutional right to bear arms -- there, both the Second Amendment and a right to bear arms under the state constitution -- counseled against reading a gun control law as imposing strict liability, see State v. Williams, 148 P.3d 993 (Wash. 2006) (which I blogged about here).

A federal judge on Saturday granted the state of Massachusetts' request for an injunction preventing three MIT students from giving a presentation about hacking smartcards used in the Boston subway system.

The undergraduate students were scheduled to give a presentation Sunday afternoon at the Defcon hacker conference here that they had said would describe "several attacks to completely break the CharlieCard," an RFID card that the Massachusetts Bay Transportation Authority uses on the Boston T subway line. They also planned to release card-hacking software they had created.

U.S. District Judge Douglas Woodlock on Saturday ordered the students not to provide "program, information, software code, or command that would assist another in any material way to circumvent or otherwise attack the security of the Fare Media System." Woodlock granted the MBTA's request after a hastily convened hearing in Massachusetts that took place at 8 a.m. PDT on Saturday.

The suit, filed a day earlier, also names the Massachusetts Institute of Technology as a defendant. Neither MIT nor the students — Zack Anderson, R.J. Ryan, and Alessandro Chiesa — could immediately be reached for comment....

The MBTA, which is a state government agency, claims that "disclosure of this information will significantly compromise the CharlieCard and CharlieTicket systems" and "constitutes a threat to public health or safety." ...

Every one of the thousands of people here who registered for Defcon received a CD with the students' 87-page presentation titled "Anatomy of a Subway Hack." It recounts, in detail, how they wrote code to generate fake magcards. Also, it describes how they were able to use software they developed and $990 worth of hardware to read and clone the RFID-based CharlieCards.

Those CDs were distributed to conference attendees starting Thursday evening, meaning the injunction was nearly two days late. (On the other hand, the source code to the utilities — not included on the CD — was removed from web.mit.edu/zacka/www/subway/ by Saturday morning.) ...

The order barred "providing program, information, software code, or command that would assist another in any material way to circumvent or otherwise attack the security of the Fare Media System." The ban on "information" appears especially broad, and would restrict even lectures or papers describing the general techniques; this means the broader question about whether communicating code (source or object) is "speech" need not be reached here, because lectures and papers clearly are.

The question is whether, in this context, the speech is constitutionally unprotected, and, even if it is, it can be restrained by a preliminary injunction. If the only argument was that the students' speech was "crime-facilitating" in the sense of helping others commit crimes (or even torts), I'd just rely on the analysis in my Crime-Facilitating Speech, 57 Stan. L. Rev. 1095 (2005). (For whatever it's worth, there's apparently a factual dispute about whether the students warned MBTA of their findings and gave them an opportunity to fix the security problem before going public with their conclusions; that question may be relevant to whether the students behaved properly, but under my Stan. L. Rev. analysis it shouldn't be relevant to whether their speech publicizing the violation is constitutionally protected.)

But here the MBTA argues (see the Complaint and the Memorandum in support of the Temporary Restraining Order) that the student defendants got the information by illegally accessing the material inside the MBTA cards, and other MBTA computer systems, in violation of the Computer Fraud and Abuse Act — a law that neutrally bans the conduct of unauthorized access to others' computer systems. Whether the speech communicating information they learned from their illegal conduct (if it was illegal) may be restricted is potentially a different question.

On the other hand, even otherwise unprotected speech generally can only be restricted after a finding on the merits that the speech is indeed unprotected. It generally can't be restricted via a temporary restraining order or a preliminary injunction that's just based on a preliminary, quick-and-dirty estimate of whether a crime was committed and whether the speech is therefore constitutionally unprotected. That's the best rationalization I could come up with of the "prior restraint" doctrine, which as I understand it means that speech cannot be restrained prior to a merits finding about whether it's unprotected. See this analysis in Mark Lemley's and my Duke article on preliminary injunctions in intellectual property cases, though note that our article responds largely to the fact that the prior restraint doctrine seems to be disregarded (mostly silently) in certain classes of cases, such as copyright cases.

So this is a pretty complex legal question, which is one reason I only offer the tentative framework above. I hope to have more thoughts on the subject in coming days.

For readers interested in the normative arguments for and against a right to secession, I recommend Allen Buchanan's 1991 book Secession: the Morality of Political Divorce, and Christopher Wellman's more recent A Theory of Secession. Unlike me, Buchanan advocates a presumption in favor of maintaining existing states, though a more limited one than under current international law. Wellman, by contrast, defends the view that any group should have the right to secede so long as it meets certain minimal criteria. He contends that a broad right of secession is a logical implication of the right to political self-determination. Both books are outstanding, and well worth your time if you are interested in these issues.

And if you are a Penn or George Mason student, you may be interested to know that I have a unit on the pros and cons of secession in my seminar on Federalism (scroll down for description). I didn't expect the issue to be quite as topical as it has become over the last few days as a result of the tragic events in Georgia.

Russia's "Kosovo precedent" argument poses a false dichotomy: either all secessionist movements are justified or none are. In reality, the moral legitimacy of secession varies from case to case. The worse the existing government and the better the new one the secessionists are likely to set up, the stronger the justification for secession. A secessionist movement that seeks to establish a new state in order to engage in repression is very different from one intended to defend its own people against oppression by the central government.

Thus, as I noted in this post, the southern states' attempted secession in 1861 was indefensible because undertaken for the purpose of extending and protecting the horrendous institution of slavery; however, it would have been a different case if free states had seceded in order to prevent a proslavery federal government from forcing them to accept the "peculiar institution" against their will.

The Kosovo case is at the opposite pole from that of the Confederates. The Kosovar Albanians had been victims of mass murder and "ethnic cleansing" at the hands of the Serbian government; although the regime that instituted these policies was no longer in power by the time Kosovo formally declared independence earlier this year, extreme nationalists retain enough influence in Serbian politics that the Kosovar Albanians could not reasonably be expected to accept the return of Serbian rule. Moreover, the 2008 declaration of independence simply ratified a de facto secession that had already been in place for nine years. So the key point at issue is the legitimacy of Kosovo's de facto separation from Serbia back in 1999.

This is not to say that the Kosovo Albanians haven't committed some human rights violations of their own or that their new government is a model regime. However, there is little question that Kosovo's secession after occupation by NATO forces in 1999 prevented a great deal more injustice than it caused.

South Ossetia is an intermediate case between these two. The Ossetian separatists claim that the Georgian government discriminated against ethnic Ossetians in various ways. Even if some of the claims are true, there was nothing remotely comparable to what was done to the Kosovars. Moreover, an independent South Ossetia is likely to come under the control of Russia (as it largely has already). And the Russian government is itself often repressive, and surely cannot be trusted to protect the rights of the ethnic Georgians who live in the area. Thus, at least to this nonexpert, the question of whether South Ossetian secession would reduce ethnic oppression or increase it is a close call. The issue certainly can't be resolved through ritualistic citation of the "Kosovo precedent."

The basic point, however, is that the morality of secession must be considered on a case by case basis. The key variable is the relative quality of the central government as compared to the new regime the secessionists seek to establish.

II. The Case Against a Presumption in Favor of Status Quo Governments.

My approach is at odds with the conventional view that there should be a heavy presumption in favor of the "territorial integrity" of existing states. I don't have time and space for a detailed critique of that position. So I will briefly note three major points against it. First, most existing states were themselves established through coercion, putting down potential opposition by force. I don't think that the results of such processes are entitled to automatic deference. Second, the international law norms that exalt the integrity of status quo governments were, of course, established by status quo governments, which have an obvious conflict of interest here. Existing states - particularly those that oppress large portions of their population - have an obvious interest in establishing a monopoly over their subjects by denying them the opportunity to set up new and potentially better governments through secession. I see little reason to defer to such transparently self-interested "lawmaking." Finally, I am unconvinced by claims that abandoning the presumption against secession would lead to uncontrolled chaos through endlessly proliferating secession movements. Given the substantial transition costs of setting up a new government and breaking ties with the old one, few regions are likely to attempt secession without strong genuine grievances against the previous government. Even a peaceful secession will carry significant costs. It is telling that the "Kosovo precedent" (like the secession of the various former Soviet republics from Russia in the 1990s) has not led to establishment of any new secession movements anywhere in the world. Secession movements are usually driven by local grievances and agendas, not by "precedents" arising from events in other parts of the world.

The comparative framework I advocate in this post doesn't consider the hard question of whether a region should be allowed to secede if the potential new government is likely to be both no worse and no better than the current one. Should such a region have the right to secede anyway if the majority of its people wish to do so? If time permits, I will take up that issue in a later post.

UPDATE: I fully recognize that I haven't define such key concepts as "oppression" in this post. I can't possibly develop a comprehensive theory of political morality here. The post is limited to arguing that the moral legitimacy of secession should be evaluated through a comparative approach. People with differing political philosophies can legitimately disagree over which factors should be weighed in determining which government is better, and how much weight should be assigned to each.

Col. Morris Davis (who we've blogged about before here and here), posted some comments on the Hamdan verdict at Opinio Juris:

The jury sentenced Hamdan to 66 months. The judge gave him credit for nearly 61 months of time served, so he has less than 6 months remaining on his sentence. Hamdan won in the Supreme Court in 2006 and ended up back in his cell. He won again a little over a year ago when Judge Allred dismissed charges because the word “unlawful” was missing from the CSRT determination, which is required for MCA jurisdiction. Again, Hamdan won but ended up back in his cell. This time he lost, but in the end losing may equate to winning. It remains to be seen whether the administration intends to keep Hamdan past the end of his sentence; doing so begs the question of why we even bother to hold trials. If you look at Hicks (9 months) and Hamdan (<6 months) it suggests the best way to win at Gitmo is to lose.

While the conviction may have been a "win" for Hamdan, Kevin Jon Heller also suggests that the conviction may be unconstitutional.

Sunday Song Lyric:
I first saw Shirley Manson perform with the short-lived band, Angelfish in a show a the 9:30 Club in D.C. They were opening for another band (Live or Sugar, if I recall correctly). I don't remember her band all that much, but she was awesome. Angelfish disbanded, and Manson went on to much bigger things: Garbage. The band has been a guilty pleasure of mine ever since.

Apparently some VC readers like Garbage too. At the recommendation of one, here are the opening lyrics to Garbage's "Bleed Like Me."

Avalanche is sullen and too thin
she starves herself to rid herself of sin
and the kick is so divine when she sees bones beneath her skin
and she says:
hey baby can you bleed like me?
c´mon baby can you bleed like me

chrissie´s all dressed up and acting coy
painted like a brand new christmas toy
he´s trying to figure out if he´s a girl or he´s a boy
he says:
hey baby can you bleed like me?
c´mon baby can you bleed like me

This reader explains the song choice:

A plain reading of the lyrics belies the combination of Shirley Manson's voice and the background swells that punctuate each verse. It's an anthem. People united in their pain (and loneliness - or am I reading that one in?). It's unfortunate, but we are all united by pain, of some form or other. The song is amazing. Truly amazing.